Intellectual Property

In 1980, the Supreme Court ruled that living organisms can be patented, provided they are "a product of human ingenuity." Months later, federally-funded science was removed from the public domain, making it patentable. As individuals and institutions took possession of the intellectual property (IP) rights to their discoveries, there was a boom in the privatization of science. Today, so many different entities hold so many different patents, scientific innovation seems to be more difficult and less profitable as a result. How can scientific progress occur when everyone owns a tiny piece of the pieand charges for the privilege of studying it?

Metric People Patents

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HOW PATENTS CHANGED SCIENCE

Michael Heller, Columbia Law School professor and author of The Gridlock Economy

How do academics approach the IP issue? What's the status quo?
Academic researchers often treat patent law the way college students treat downloaded music. They know that there is a legal regime out there but are either dismissive or willfully ignorant of it. Recently, the University of Iowa went through the materials, reagents, and processes that scientists in one small lab were using and discovered 71 different entities whose material the lab was ripping off. That investigation cost tens of thousands of dollars, not including the unpaid licensing fees. This is the situation across the country.

So when it comes time to publish...?
Publication can expose patent infringements in someone's research. This causes delays in publication, partly to secure property rights on discoveries, partly to secure rights that have been lifted from others. As our property rights system becomes increasingly congested, we're shifting to a science culture where there's a premium on secrecy and delay instead of openness and speed.

How will property rights and patents affect future scientific innovation?
If you need to assemble separately patented pieces into a final product, you can run into gridlock. For example, you could have a diagnostic tool with each underlying component separately patented. Or you could have a drug that requires licensing multiple variants of a gene, which have all been separately patented.

At what point did it become acceptable to patent genes? They aren't products of human ingenuity.
The ingenuity here is associating genetic components with particular biological systems. Knowledge about the gene's function is patented, not the gene itself. So the patent regime is encouraging people to do basic research into gene function. The notion that someone could patent living organisms, and also things that were found in them, like aspects of a gene, was an important turning point in the privatization of basic science. On the plus side, it encourages private money to flow into basic research. On the minus side, it's changing the culture of science in ways that weren't fully anticipated. Too much privatization can mean gridlock. Interviewed by Nikki Greenwood